There was big news on Wednesday about Supreme Court Justice Stephen Breyer deciding to retire, something folks on the left have been pushing for some time to get his replacement named by Joe Biden. But even that story got messy when reports followed that Breyer hadn't planned on announcing the news yet and was “upset” or “surprised” (depending upon which report you chose to believe). The report still appears to have validity that he is going to retire, just that he hadn't planned to announce it when it was announced, but rather on his terms.
This may reveal some of that backbiting effort on the left to try to push Breyer out the door so they could get a younger appointee from Biden, something Breyer probably doesn't appreciate. But the left wants him out the door before the possible change in Congress when Republicans could potentially take over the Senate and then pose a greater problem to a nominee. If they're able to put through someone now, they likely would have Sen. Joe Manchin (D-WV) and Sen. Kyrsten Sinema (D-AZ) and they might get the Republican squishes like Sen. Mitt Romney (RINO-UT) and Sen. Lisa Murkowski (RINO-AK). But even if they didn't have Romney and Murkowski, they could break a tie with Kamala Harris. So it sets up the fascinating possibility that if they tried to put up Harris as a nominee to possibly get her out of the way, she could vote for herself. She would be fulfilling Biden's promise of considering a black woman nominee. Then, they would be able to put someone else in office to replace her.
I don't know how serious Biden would be considering the idea of Kamala, but the reputed shortlist doesn't have her name on it. Here are some of the names being considered.
-DC Circuit Judge Ketanji Brown Jackson who clerked for Breyer and holds degrees from Harvard and Harvard Law School. She also served as an assistant federal public defender.
-California Supreme Court Justice Leondra Kruger who clerked for the late Justice John Paul Stevens and was also acting deputy solicitor general in the Obama Administration.
-South Carolina US District Court Judge J. Michelle Childs who Rep. Jim Clyburn likes and Clyburn certainly has Joe Biden's ear as he was instrumental in getting him into office. She was just nominated for the D.C. Circuit Court — that is still pending.
Other names being considered: District Judge Wilhelmina “Mimi” Wright, Circuit Judge Eunice Lee, Circuit Judge Candace Jackson-Akiwumi, and Sherrilyn Ifill.
But just because Biden nominates someone and the Democrats have the slimmest of majorities in the Senate right at the moment doesn't mean that the nominee will necessarily make it through. Indeed, she could be blocked. Because of a power-sharing agreement between Sen Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY), the Judiciary Committee membership, staff and budgets are split in half. So there are equal numbers of Republicans and Democrats on the Committee, 11 each. If the Republicans chose to and they all voted together, they could hang a nominee up in Committee and the nominee would be in limbo, not voted out of Committee.
There is a way to get past that, but there's still a big problem for the Democrats.
A majority of the Senate–51 votes, typically–can then put debate about the issue on the calendar for the next day. But that's the last easy part. When the potential pick comes to the floor again, it's not as a nomination. At that point, it's a motion to discharge, a cloture motion that requires 60 votes. In other words, 10 Republicans would have to resurrect the nomination of someone already blocked in the Judiciary Committee.
In today's climate, there's no way they're getting 10 Republicans to cross the aisle if the GOP is holding firm on a nomination.
Given the bulldog history of Mitch McConnell when it comes to nominations, I think it's safe to say that, depending upon the nominee, you may see Cocaine Mitch employ such a tactic.